SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. 4)
PHP HEALTHCARE CORPORATION
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
693344103
(CUSIP Number)
Mr. Charles H. Robbins
7720 Carlton Place
McLean, Virginia 22102
(703) 550-8145
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
with a copy to:
Lawrence T. Yanowitch
Tucker, Flyer & Lewis
a professional corporation
1615 L Street, N.W., Suite 400
Washington, D.C. 20036-5601
(202) 452-8600
May 2, 1997
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(b)(3) or (4), check the following box [ ].
(Continued on following pages)
(Page 1 of 28 Pages)
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CUSIP No. 693344103 13D Page 2 of 28
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Charles H. Robbins
2. Check the appropriate box if a member of a group (a) [ ]
(b) [x]
3. SEC USE ONLY
4. Source of Funds
N/A
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) [ ]
6. Citizenship or Place of Organization
United States
7. Sole Voting Power
NUMBER OF SHARES
BENEFICIALLY 1,410,076 shares (see Item 5)
OWNED BY
EACH 8. Shared Voting Power
REPORTING
PERSON 0 shares
WITH
9. Sole Dispositive Power
1,410,076 shares (see Item 5)
10. Shared Dispositive Power
0 shares
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
1,410,076 shares (see Item 5)
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares [ ]
13. Percent of Class Represented by Amount in Row (11)
12.0%
14. Type of Reporting Person
IN
<PAGE>
CUSIP No. 693344103 13D Page 3 of 28
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Ellen E. Robbins
2. Check the appropriate box if a member of a group (a) [ ]
(b) [x]
3. SEC USE ONLY
4. Source of Funds
N/A
5. Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) [ ]
6. Citizenship or Place of Organization
United States
NUMBER OF SHARES 7. Sole Voting Power
BENEFICIALLY
OWNED BY 300,000 shares (see Item 5)
EACH
REPORTING 8. Shared Voting Power
PERSON
WITH 0 shares
9. Sole Dispositive Power
300,000 shares (see Item 5)
10. Shared Dispositive Power
0 shares
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
300,000 shares (see Item 5)
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares [ ]
13. Percent of Class Represented by Amount in Row (11)
2.6%
14. Type of Reporting Person
IN
<PAGE>
4
This Amendment No. 4 is filed by Charles H. Robbins and
Ellen E. Robbins (collectively, the "Reporting Persons"), amends
and supplements the statement of the Reporting Persons on
Schedule 13D (the "Schedule 13D") filed by the Reporting Persons,
relating to Common Stock, par value $.01 per share (the "Common
Stock"), of PHP Healthcare Corporation, a Delaware corporation
(the "Issuer").
Item 4. Purpose of the Transaction.
Item 4 is hereby amended and supplemented by adding to the
information under the caption Employment Agreement the following:
On May 2, 1997 (and effective as of April 30, 1997), the
Issuer and Mr. Robbins amended the Employment Agreement, by
entering into Amendment No. 1 to the Employment Agreement
("Amendment No. 1 to the Employment Agreement"), and the
Registration Rights Agreement, by entering into Amendment No. 1
to the Registration Rights Agreement ("Amendment No. 1 to the
Registration Rights Agreement"). The provisions of Amendment No.
1 to the Employment Agreement and Amendment No. 1 to the
Registration Rights Agreement were contingent upon the closing of
the sale of 300,000 shares of Common Stock by Mr. Robbins to a
trust, under which John W. Kluge is the grantor, by May 7, 1997
(the "Kluge Sale").
Pursuant to Amendment No. 1 to the Employment Agreement,
upon the closing of the Kluge Sale the Put Right for 200,000
shares of Common Stock exercised by Mr. Robbins on April 30th
would terminate and the provisions in the Employment Agreement
with respect to the Put Right would be deleted. Upon the closing
of the Kluge Sale, Mr. Robbins would repay to the Issuer
indebtedness incurred pursuant to the Issuer's Executive Loan
Program and for the cash value of split value life insurance
policies transferred to Mr. Robbins. Amendment No. 1 to the
Employment Agreement further modifies the Employment Agreement by
amending the transfer provisions of the Employment Agreement such
that the Reporting Persons agreed not to, directly or indirectly
(subject to certain exceptions) sell, lend, transfer or otherwise
dispose of more than 400,000 shares of Common Stock prior to
November 1, 1997; provided, that 300,000 of such shares may only
be sold in connection with the Kluge Sale.
Amendment No. 1 to the Registration Rights Agreement extends
the termination of the provisions of the Registration Right
Agreement from February 28, 1999 to May 31, 1999.
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5
On May 2, 1997, Mr. Robbins consummated the Kluge Sale
pursuant to the Purchase and Sale Agreement (as defined herein)
with the Kluge Trust (as defined herein). As a result, Mr.
Robbins' Put Right was terminated and the provisions with respect
to the Put Right in the Employment Agreement were deleted.
The foregoing descriptions of Amendment No. 1 to the
Employment Agreement and Amendment No. 1 to the Registration
Rights Agreement are qualified in their entirety by the text of
Amendment No. 1 to the Employment Agreement and Amendment No. 1
to the Registration Rights Agreement, which are attached hereto
as Exhibits 4.1 and 4.2 respectively and are incorporated herein
by reference.
Item 4 is further amended by deleting the information under
the caption Alternative Third Party Sale.
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended and supplemented by deleting the
information set forth therein in its entirety and substituting in
lieu thereof the following:
(a), (b) Charles H. Robbins beneficially owns 1,410,076
shares of Common Stock, including 526,667 shares which Mr.
Robbins can acquire upon the exercise of options granted by the
Issuer pursuant to the Stock Option Agreements. The 1,410,076
shares do not, however, include 300,000 shares owned by Ellen E.
Robbins, individually and as trustee (as described below) or
139,000 shares beneficially owned by Charles H. Robbins' son,
Charles B. Robbins. The 1,410,076 shares beneficially owned by
Mr. Robbins represent approximately 12.0% of the outstanding
Common Stock of the Issuer. Charles H. Robbins has sole voting
and dispositive power with respect to such shares. The filing of
this statement by Charles H. Robbins shall not be construed as an
admission that he is, for the purposes of Section 13(d) or 13(g)
of the Exchange Act, the beneficial owner of any of the
securities owned by Ellen E. Robbins or Charles B. Robbins.
Ellen E. Robbins, individually and as trustee under trusts
established by Charles H. Robbins for the benefit of Caroline H.
Robbins and Lee S. Robbins, beneficially owns 300,000 shares of
Common Stock, which represent approximately 2.6% of the
outstanding Common Stock of the Issuer. Ellen E. Robbins has
sole voting and dispositive power with respect to such shares.
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6
The filing of this Schedule 13D by Ellen E. Robbins should not be
construed as an admission that she is, for the purposes of
Section 13(d) or 13(g) of the Exchange Act, the beneficial owner
of any of the securities owned by Charles H. Robbins or Charles
B. Robbins.
In the aggregate, Charles H. Robbins and Ellen E. Robbins
(individually and as trustee) beneficially own 1,710,076 shares
of Common Stock, which represent approximately 14.6% of the
outstanding Common Stock of the Issuer.
(c) On May 2, 1997, Mr. Robbins and Chase Manhattan Bank,
John W. Kluge & Stuart Subotnick Trustees U/A DTD 5/30/84 As
Amended made by and for John W. Kluge (the "Kluge Trust") entered
into a Purchase and Sale Agreement (the "Purchase and Sale
Agreement"). Pursuant to the Purchase and Sale Agreement, on May
2, 1997 Mr. Robbins sold 300,000 shares of Common Stock held by
him to the Kluge Trust for a per share purchase price of $13.00
per share and an aggregate purchase price of $3,900,000.
The foregoing description of the Purchase and Sale Agreement
is qualified in its entirety by the text of the Purchase and Sale
Agreement, which is attached hereto as Exhibit 4.3 and is
incorporated herein by reference.
(d), (e) Not Applicable
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
Item 6 is hereby amended and supplemented by incorporating
herein the information set forth under Item 4 and Item 5(c) of
this Amendment No. 4.
Item 7. Items to be Filed as Exhibits
Exhibit Description
4.1 Amendment No. 1 to the Employment Agreement, dated as
of April 30, 1997, by and between PHP Healthcare
Corporation and Charles H. Robbins
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7
4.2 Amendment No. 1 to the Registration Rights Agreement,
dated as of April 30, 1997, by and between PHP
Healthcare Corporation, Charles H. Robbins, Ellen E.
Robbins, Ellen E. Robbins, Trustee Under Trust
Indenture dated October 1, 1985, FBO Caroline H.
Robbins, Charles H. Robbins, Grantor, Ellen E. Robbins,
Trustee Under Trust Indenture dated October 1, 1985,
FBO Lee S. Robbins, Charles H. Robbins, Grantor and
Charles B. Robbins
4.3 Purchase and Sale Agreement, dated May 2, 1997, by and
between Chase Manhattan Bank, John W. Kluge & Stuart
Subotnick Trustees U/A DTD 5/30/84 As Amended made by
and for John W. Kluge and Charles H. Robbins
<PAGE>
8
SIGNATURES
After reasonable inquiry and to the best knowledge and
belief of the undersigned, the undersigned hereby certifies that
the information set forth in this amendment is true, complete and
correct.
Date: May 5, 1997
/s/ Charles H. Robbins
Charles H. Robbins
/s/ Ellen E. Robbins
Ellen E. Robbins
<PAGE>
9
EXHIBIT INDEX
Exhibit Description
4.1 Amendment No. 1 to the Employment Agreement,
dated as of April 30, 1997, by and between
PHP Healthcare Corporation and Charles H.
Robbins
4.2 Amendment No. 1 to the Registration Rights
Agreement, dated as of April 30, 1997, by and
between PHP Healthcare Corporation, Charles
H. Robbins, Ellen E. Robbins, Ellen E.
Robbins, Trustee Under Trust Indenture dated
October 1, 1985, FBO Caroline H. Robbins,
Charles H. Robbins, Grantor, Ellen E.
Robbins, Trustee Under Trust Indenture dated
October 1, 1985, FBO Lee S. Robbins, Charles
H. Robbins, Grantor and Charles B. Robbins
4.3 Purchase and Sale Agreement, dated May 2,
1997, by and between Chase Manhattan Bank,
John W. Kluge & Stuart Subotnick Trustees U/A
DTD 5/30/84 As Amended made by and for John
W. Kluge and Charles H. Robbins
10
AMENDMENT NO. 1
TO
EMPLOYMENT AGREEMENT
This Amendment No. 1 (the "Amendment") is entered into as of
April 30, 1997, by and between PHP Healthcare Corporation, a
Delaware corporation (the "Company"), and Charles H. Robbins, an
individual residing at 7720 Carlton Place, McLean, Virginia (the
"Employee").
WHEREAS, the Company and the Employee are parties to an
Employment Agreement dated as of February 24, 1997 (the
"Employment Agreement");
WHEREAS, the Company and the Employee desire to amend the
terms and conditions of the Employment Agreement to permit
Employee to sell 300,000 shares of Employee's Common Stock to a
trust (the "Trust") under which John W. Kluge is the grantor,
pursuant to the Stock Purchase Agreement between Employee and the
Trust, dated as April 30, 1997, substantially in the form
attached hereto as Exhibit A (the "Kluge Sale"), in lieu of
Employee's exercise of the Put Right (unless otherwise defined
herein, all capitalized terms shall have the meaning set forth in
the Employment Agreement).
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual promises, agreements and covenants contained
herein, the parties hereto agree as follows:
1. The Employment Agreement is hereby amended as follows:
1.1 Section 2 of the Employment Agreement is amended
by deleting Section 2.02 in its entirety and reserving such
section in blank.
1.2 Section 2.06(a) is amended by (i) replacing the
phrase "any exercise of the Put Right pursuant to Section 2.02"
with the phrase "the Kluge Sale," (ii) replacing the phrase "such
amounts are paid in full" with the phrase "April 30, 1997" and
(iii) deleting the last sentence in full (which sentence begins
"Any proceeds for the Put Right. . .").
<PAGE>
11
1.3 Section 2.06(b) is amended by replacing the clause
"In the event that Employee does not exercise the Put Right
pursuant to Section 2.02" with the clause "Irrespective of the
proceeds, if any, from the Kluge Sale".
1.4 Section 3.03 of the Employment Agreement is hereby
restated in its entirety as follows:
3.03 Restrictions on Transfer. Prior to November
1, 1997, the Restricted Persons shall not, directly or
indirectly, sell, lend, transfer or otherwise dispose of, offer
to sell, lend, transfer or otherwise dispose of or agree to sell,
lend, transfer or otherwise dispose of more than 400,000 shares
of Common Stock they own, provided, however, that up to 300,000
of such shares may be sold in the Kluge Sale; and provided,
further, that the Restricted Persons may sell, lend, transfer or
otherwise dispose of such Common Stock of the Company in the
event of (i) a Change in Control (as defined above), (ii) an
underwriting of at least one million five hundred thousand
(1,500,000) shares of the Common Stock in which Restricted
Persons are permitted to participate pursuant to the terms of the
Registration Rights Agreement between Restricted Persons and the
Company dated as of February 24, 1997 or (iii) pursuant to a bona
fide pledge of or the granting of a security interest or any
other lien or encumbrance in such shares of Common Stock to a
recognized institutional lender to secure a bona fide loan.
Until the Standstill Termination Date, the Restricted Persons
shall not, directly or indirectly, sell, lend, transfer or
otherwise dispose of any of their shares of Common Stock of the
Company (or agree to do so) to any person which, to their
knowledge and after taking into account such sale, would
Beneficially Own more than one percent (1%) of the Company's
Common Stock (other than pursuant to the Kluge Sale). The
parties agree that the three children of Charles and Ellen
Robbins (and any trust created on their behalf prior to January
31, 1997) are excluded from the restrictions in this Section
3.03.
2. In connection with this Amendment and the closing of
the Kluge Sale, the Company agrees to reimburse the Employee for
his legal fees and costs in an amount not to exceed $10,000.
<PAGE>
12
3. Except as specifically amended herein, the provisions
of the Employment Agreement shall continue in full force and
effect as set forth therein.
4. This Amendment shall be effective simultaneously with
the closing of the Kluge Sale, at which time the Put Right shall
terminate and be of no further force and effect. If the Kluge
Sale is not consummated by May 7, 1997, this Amendment shall be
null and void and be of no further force and effect.
5. This Amendment may be executed in one or more
counterparts, each of which shall for all purposes be deemed to
be an original and all of which shall constitute one and the same
instrument.
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13
IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed as of the day and year first above written.
PHP HEALTHCARE CORPORATION
By: /s/ Anthony M. Picini
Name: Anthony M. Picini
Title: Executive V.P. & C.F.O.
/s/ Charles H. Robbins
CHARLES H. ROBBINS
/s/ Ellen Robbins
ELLEN ROBBINS
(as to the amendment to Section
3.03)
105901.06
14
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
PHP HEALTHCARE CORPORATION
AND
CERTAIN STOCKHOLDERS OF
PHP HEALTHCARE CORPORATION
Dated as of April 30, 1997
<PAGE>
15
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 (the "Amendment") is entered into as of
April 30, 1997 by and between PHP Healthcare Corporation, a
Delaware corporation (the "Company"), and Charles H. Robbins,
Ellen E. Robbins, Ellen E. Robbins, Trustee Under Trust Indenture
dated October 1, 1985, FBO Caroline H. Robbins, Charles H.
Robbins, Grantor, Ellen E. Robbins, Trustee Under Trust Indenture
dated October 1, 1985, FBO Lee S. Robbins, Charles H. Robbins,
Grantor and Charles B. Robbins (collectively, the
"Stockholders").
WHEREAS, the Company and the Stockholders have entered into
a Registration Rights Agreement, dated as of February 24, 1997
(the "Registration Rights Agreement"); and
WHEREAS, the Company and the Stockholders desire to amend
the Registration Rights Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants contained herein, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Section 4.8 is amended and restated in its entirety as
follows:
4.8. Termination.
This Agreement shall terminate on May 31, 1999;
provided, however, that if the Company, in violation of this
Agreement, fails to effectuate a Demand Registration for which a
Demand Registration Notice was timely delivered to the Company,
the Company shall continue to be required to effectuate such
Demand Registration and maintain its effectiveness until the
earlier of (x) the Eligible Shares thereunder are sold in
accordance with the method of distribution or (y) one year from
the date of such effectiveness.
2. This Amendment shall be effective simultaneously with the
closing of the Kluge Sale (as defined in Amendment No. 1 to the
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16
Employment Agreement).
3. Except as specifically amended herein, the provisions of the
Registration Rights Agreement shall continue in full force and
effect as set forth therein
4. This Amendment may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original
and all of which shall constitute one and the same instrument.
<PAGE>
17
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date set forth above.
PHP HEALTHCARE CORPORATION
By: /s/ Anthony M. Pucini
Name: Anthony M. Pucini
Title: Executive V.P. & C.F.O.
/s/ Charles H. Robbins
CHARLES H. ROBBINS
/s/ Ellen E. Robbins
ELLEN E. ROBBINS
/s/ Ellen E. Robbins
ELLEN E. ROBBINS,
Trustee Under Trust Indenture
dated October 1, 1985
FBO Caroline H. Robbins,
Charles H. Robbins, Grantor
/s/ Ellen E. Robbins
ELLEN E. ROBBINS,
Trustee Under Trustee Indenture
dated October 1, 1985,
FBO Lee S. Robbins,
Charles H. Robbins, Grantor
/s/ Charles B. Robbins
CHARLES B. ROBBINS
18
STOCK PURCHASE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is made
as of May 2, 1997, by and between Chase Manhattan Bank, John W.
Kluge & Stuart Subotnick Trustees U/A DTD 5/30/84 As Amended made
by and for John W. Kluge (the "Buyer") and Charles H. Robbins, an
individual residing in Virginia (the "Seller"). The Buyer and
the Seller are referred to collectively herein as the "Parties."
WHEREAS, the Buyer intends to purchase from the Seller, and
the Seller intends to sell to the Buyer, 300,000 shares (the
"Shares") of PHP Healthcare Corporation's (the "Company") Common
Stock, $.01 par value, on the terms and subject to the conditions
herein provided;
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements herein
made, and upon the terms and subject to the conditions herein
contained, the Parties agree as follows:
SECTION 1
Purchase and Sale of Shares
1.1 Transaction. On and subject to the terms and conditions
of this Agreement, the Buyer agrees to purchase from the Seller,
and the Seller agrees to sell to the Buyer, the Shares for the
consideration specified below in this Section 1.2.
1.2 Purchase Price. The Buyer agrees to pay to the Seller,
by wire transfer of same day funds, at the Closing (as defined in
Section 2) $13.00 per share, for a total payment of $3,900,000.00
(the "Purchase Price"), to the account, or accounts, designated
by the Seller in writing prior to the Closing (as defined
herein).
1.3 Taxes. The Buyer shall bear the cost of any
documentary, stamp, sales, excise, transfer or other taxes
payable (other than income taxes payable by the Seller) in
respect of the sale of Shares.
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19
SECTION 2
Closing Dates; Delivery
2.1 Closing Dates. The closing of the transactions
contemplated by this Agreement shall be held at the offices of
Tucker, Flyer & Lewis, 1615 L Street, N.W., Washington, D. C., or
such other place as the Parties may agree, at no later than 2:00
p.m., local time, on the day which is one business day after the
day on which the last of the conditions set forth in Section 5
and 6 shall have been satisfied or waived (the "Closing") or at
such other time and place upon which the Seller and the Buyer
shall agree (the date of the Closing is hereinafter referred to
as the "Closing Date").
2.2 Delivery. At the Closing, (i) the Seller will deliver
to Buyer a certificate or certificate(s) for the Shares, and (ii)
the Buyer will deliver via wire transfer to the Seller the
Purchase Price specified in Section 1.2 above in immediately
available funds. Each of the certificates shall be duly endorsed
for transfer or accompanied by appropriate stock powers duly
executed, in either case in favor of the Buyer.
SECTION 3
Representations, Warranties and Agreements of the Seller
The Seller represents and warrants to the Buyer that the
statements contained in this Section 3 are correct and complete
as of the date of this Agreement and will be correct and complete
as of the Closing Date:
3.1 Ownership of Shares. The Seller owns the Shares free
and clear of all liens, claims or encumbrances (except for the
restrictions set forth in the Employment Agreement (the
"Employment Agreement") dated February 24, 1997 by and between
the Company and the Seller).
3.2 Legal Capacity. The Seller has full legal capacity to
execute and deliver this Agreement and to perform his obligations
hereunder (except for the restrictions set forth in the
Employment Agreement). This Agreement constitutes the valid and
legally binding obligation of the Seller, enforceable in
accordance with its terms and conditions. Except as may be
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20
required by the Federal or state securities laws, the Seller need
not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement.
3.3 Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency or court to which the Seller is subject or (ii) except for
the Employment Agreement, violate or result in a breach or
constitute a default under the terms of any contract or agreement
to which the Seller is a party.
3.4 Brokers or Finders. The Seller has not incurred, and
will not incur, directly or indirectly, as a result of any action
taken by the Seller, any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with
this Agreement.
3.5 Other Agreements. Except for the Employment Agreement,
the Seller is not a party to any agreements, contracts,
arrangements or understandings with respect to the
transferability or voting of the Shares.
SECTION 4
Representations and Warranties of the Buyer
The Buyer hereby represents and warrants to the Seller that
the Statements contained in this Section 4 are correct and
complete as of the date of this Agreement and will be correct and
complete as of the Closing Date.
4.1 Accredited Investor. The Buyer is an "accredited
investor" within the meaning of Rule 501(a)(3) of Regulation D,
under the Securities Act of 1933, as amended (the "Securities
Act").
4.2 Purchase for Investment. The Buyer is purchasing the
Shares for investment for its own account, not as a nominee or
<PAGE>
21
agent, and not with a view to any public resale or other
distribution thereof except in compliance with applicable
securities laws. The Buyer understands that the Shares are not
registered under the Securities Act or under any state or foreign
securities laws.
4.3 Access to Information. The Buyer acknowledges that it
has reviewed all public information which it considers necessary
or advisable to enable it to make a decision concerning its
purchase of Shares.
4.4 Legal Capacity. The Buyer has full legal capacity to
execute and deliver this Agreement and to perform his obligations
hereunder. This Agreement constitutes the valid and legally
binding obligation of the Buyer, enforceable in accordance with
its terms and conditions. Except as may be required by the
Federal or state securities laws, the Buyer need not give any
notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this
Agreement.
4.5 Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency or court to which the Buyer is subject or (ii) except for
the Employment Agreement, violate or result in a breach or
constitute a default under the terms of any contract or agreement
to which the Seller is a party
4.6 Brokers or Finders. The Buyer has not, and will not,
incur, directly or indirectly, as a result of any action taken by
such Buyer, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with
this Agreement.
<PAGE>
22
SECTION 5
Buyer's Conditions to Closing
The Buyer's obligations to purchase the Shares at the
Closing are subject to the fulfillment of the following
conditions, the waiver of which shall not be effective unless
the Buyer consents in writing thereto:
5.1 Representations and Warranties Correct. The
representations and warranties made by the Seller in Section 3
hereof shall be true and correct when made, and shall be true and
correct on the Closing Date in all material respects.
5.2 Compliance with State Securities Laws. The Seller
shall have obtained all permits and qualifications required by
any state for the offer and sale of the Shares, or shall have the
availability of exemptions therefrom.
5.3 No Prohibition. No statute, rule or regulation or
order of any court or administrative agency shall be in effect
which prohibits Buyer from consummating the transactions
contemplated hereby.
5.4 Opinion of Counsel for the Seller. The Seller shall
have received an opinion from Tucker, Flyer & Lewis, counsel to
the Seller, dated the Closing Date, in form and substance
reasonably satisfactory to the Buyer.
5.5 Agreement with the Company. The Seller shall have
entered into a valid and binding agreement with the Company,
substantially in the form attached hereto as Exhibit 5.4,
modifying the Employment Agreement, which (i) provides for the
termination of the Put Right (as defined in the Employment
Agreement) which was exercised by the Seller on April 30, 1997
and (ii) permits the sale of the Shares to the Buyer.
5.6 No Claims. There are no claims pending or, to the
knowledge of the Seller, threatened against or involving the
Seller which individually or in the aggregate would have an
material adverse effect on the transactions contemplated hereby.
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23
5.7 Registration Rights Agreement. The Buyer and the
Company shall have entered into a Registration Rights Agreement,
in the substantially the form attached hereto as Exhibit 5.6.
SECTION 6
Seller's Conditions to Closing
The Seller's obligation to sell and issue the Shares at the
Closing Date is subject to the fulfillment as of the Closing Date
of the following conditions, the waiver of which shall not be
effective unless the Seller consents in writing thereto:
6.1 Representations. The representations made by the Buyer
in Section 4 hereof shall be true and correct when made, and
shall be true and correct on the Closing Date in all material
respects, and the Seller shall have received on the Closing Date
a certificate from the Buyer stating that all such
representations and warranties are true and correct on the
Closing Date in all material respects.
6.2 Compliance with State Securities Laws. The Seller
shall have obtained all permits and qualifications required by
any state for the offer and sale of the Shares or shall have the
availability of exemptions therefrom.
6.3 No Prohibition. No statute, rule or regulation or
order of any court or administrative agency shall be in effect
which prohibits Seller from consummating the transactions
contemplated hereby.
6.4 Agreement with the Company. The Seller shall have
entered into a valid and binding agreement with the Company, in
the form attached hereto as Exhibit I, modifying the Employment
Agreement. The amendment to the Employment Agreement shall (i)
provide for the termination of the Put Right (as defined in the
Employment Agreement) which was exercised by the Seller on April
30, 1997 and (ii) permit for the sale of the Shares to the Buyer.
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24
SECTION 7
Restrictions on Transferability of Securities; Compliance with
Securities Laws
7.1 General Restrictions on Transferability. The Buyer
shall not sell, assign, transfer or pledge the Shares, except
upon satisfaction of the conditions specified in this Section 7,
which conditions are intended to ensure compliance with the
provisions of the Securities Act. The Buyer will cause any
proposed purchaser, assignee, transferee, or pledgee of the
Shares held by the Buyer to agree to take and hold such
securities subject to the provisions and conditions of this
Section 7.
7.2 Restrictive Legend. Each certificate representing the
Shares shall be stamped or otherwise imprinted with a legend in
the following form (in addition to any legend required under
applicable state securities laws):
"THE COMMON STOCK EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, THE COMMON
STOCK MAY NOT BE TRANSFERRED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER SUCH
ACT AND SUCH LAWS OR PURSUANT TO AN EXEMPTION THEREFROM."
The Buyer and any subsequent holder consent to the Company making
a notation on its records and giving instructions to any transfer
agent of the Shares in order to implement the restrictions on
transfer established in this Section 7.
SECTION 8
Termination
8.1 Termination. This Agreement may be terminated (as to
the party electing to so terminate it) at any time prior to the
Closing:
a. by the Buyer if any of the conditions specified in
Section 5 of this Agreement have not been met or waived by the
Investor pursuant to the terms of this Agreement by May 7, 1997
or at such earlier date that it becomes apparent that any such
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25
condition can no longer be satisfied; or
b. by the Seller if any of the conditions specified in
Section 6 of this Agreement have not been met or waived by it
pursuant to the terms of this Agreement by May 7, 1997 or at such
earlier date that it becomes apparent that any such condition can
no longer be satisfied.
SECTION 9
Miscellaneous
9.1 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York
without regard to its rules of conflict of laws.
9.2 Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and
administrators of the Parties.
9.3 Entire Agreement; Amendment. This Agreement and the
other documents delivered pursuant hereto at the Closing
constitute the full and entire understanding and agreement
between the Parties with regard to the subjects related to
herein, and neither the Buyer nor the Seller shall be liable or
bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth
herein. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged
or terminated other than by a written instrument signed by the
party against whom enforcement of any such amendment, waiver,
discharge or termination is sought.
9.4 Notices. Any notice or other communication in
connection with this Agreement shall be made in writing and
served by personal delivery (including, without limitation,
courier, Federal Express or other overnight messenger service),
or mailed by United States certified mail, postage prepaid,
return receipt requested, addressed as follows:
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26
If to the Seller:
Charles H. Robbins
7720 Carlton Place
Vienna, Virginia 22102
Copies to:
Stefan F. Tucker, Esq.
Lawrence T. Yanowitch, Esq.
Tucker, Flyer & Lewis
1615 L Street, N.W.
Suite 400
Washington, D.C. 20036-5610
If to the Buyer:
John W. Kluge
215 East 57th Street
New York, NY
Copies to:
Metromedia Company
One Meadowlands Plaza
East Rutherford, NJ 07073
Attn: General Counsel
Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address
set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex,
ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the
intended recipient. Any party may change the address to which
notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
9.5 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be enforceable
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27
against the Parties actually executing such counterparts, and all
of which together shall constitute one instrument.
9.6 Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provision hereof.
9.7 Headings. The titles and subtitles used in this
Agreement are used for convenience only and should not be
considered in construing or interpreting this Agreement.
9.8 Expenses. The Buyer and the Seller shall each bear
their own expenses with respect to this Agreement and the
transactions contemplated hereby.
9.9 Further Assurances. The Parties agree to use their
best efforts to effectuate this Agreement and the transactions
contemplated hereby.
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28
IN WITNESS WHEREOF, each of the Parties hereto caused this
Agreement to be executed on its behalf as of the date first above
written.
CHARLES H. ROBBINS
/s/ Charles H. Robbins
Charles H. Robbins
CHASE MANHATTAN BANK, JOHN W. KLUGE
AND STUART SUBOTNICK, TRUSTEES U/A
DTD 5/30/84 AS AMENDED MADE BY AND
FOR JOHN W. KLUGE
By: /s/ John W. Kluge
John W. Kluge, Trustee
